In 2002, one hundred years after the official end of the Filipino-American war and the beginning of the Moro-American war, I wrote an editorial in my online journal, The Moro Review. In 2008, at the height of the MOA-AD brouhaha – when a great majority of the Indios clamored for the scrapping of the MOA-AD – there were accusations that the American government was pressuring the Philippine government to sign the agreement.

Now, in 2015, history seems to be repeating itself. In lieu of the the MOA-AD, the Noynoy Aquino government forged a new agreement with the MILF. While almost the same as the MOA-AD, the newly-elected Aquino was seemingly able to convince the majority of the Indio-Filipinos to support the new agreement. But the Filipinos were just biding their time and when the opportune time came (the Mamasapano incident), there was a hue and cry against the proposed Bangsamoro Basic Law, which resulted from the framework agreement between the MILF and the Aquino government.

And since it is July 4, I thought the 2002 editorial of the The Moro Review would be appropriate for re-posting. It is quite obvious that the great majority of the Indio-Filipinos would not want to give an inch to Moro aspirations of greater freedom and autonomy.

It has been 69 years since the United States of America gave the Moro nations — its people and territory — to the Indios to create a new nation-state called The Republic of the Philippines. (Aguinaldo’s Republic did not include the participation of the Moros and was not recognized by any country while the Japanese-sponsored Philippine Republic was recognized only by Japan.) America had no basis to do so. The Moros were never conquered by the Indios. Perhaps America can rectify its wrongful deed. England gave back Hong to China after a century and a half of colonization while Portugal gave Macao back to China after ruling it for around 400 years. America can give back to the Moros the freedoms and territories they had lost (including Sabah) when America gave the Moro nations and Moroland to the Indios and their newly minted nation-state.

Perhaps the only time there can be peace in the Philippines is when the Moros and the Indios can live their lives in peace and freedom — separately.

Editorial

One Hundred Years Ago

Some one hundred years ago, the Americans, under the delusion of ‘Manifest Destiny’, betrayed the trust of Gen. Emilio Aguinaldo and other Filipino revolutionary leaders and conquered the Philippine Islands thus ending the very brief experience of Filipinos with republicanism.

Some one hundred years ago, the Americans, upon the prodding of Manila-based Europeans, decided to extend their imperialistic adventures to MOROLAND –Mindanao, Sulu and Palawan but not to Sabah. Although part of the Sultanate of Sulu, Sabah was untouched by the Americans because the British were there.

One hundred years ago, on July 4, 1902, US President Theodore Roosevelt declared the Philippine-American War as officially over.

Yet it was exactly one hundred years ago when the Moro-American war began. The first fight between the Americans and the Moros occurred in the Sultanate of Bayang in the land of the Mranaos. The intermittent but bloody fight that pitted the Krag versus the Kris lasted for some 30 years until the time when the Moros were co-opted into joining the Commonwealth in 1935 and the Republic in 1946.

One hundred years ago, America was an emerging power. The Moros, on the other hand, were still enjoying their freedom and independence from any colonial power. Both had just given the Spanish authorities their walking papers. The Americans gave the Spaniards a mock battle and the Treaty of Paris while the Moros enjoyed routing the Spaniards cloistered in their fortresses scattered all over Moroland.

During the American Occupation, all Moro nations — the Tausug, the Maguindanaons, the Buayanens, the Mranaos — expressed their desire for independence from American and/or separation from the Filipino administration.

However, the Indios, who started calling themselves Filipinos, led by Quezon and Osmena convinced a handful of Moro leaders to support Philippine (including Moroland) independence. They also campaigned vigorously in Manila and in Washington not to separate Mindanao from the Philippines. They argued that the Moros were not “civilized” enough to form their own government.

With their European background, the new Filipinos portrayed themselves as the inheritors of Western civilization, unlike the Moro “savages” who were described in images befitting the Westerners’ “Other”.

Various US investigative Commissions (like the Wood-Forbes Commission) favored separation of Mindanao and Sulu from the rest of the Philippines. The Bacon Bill of 1926 demanded such separation. US President Hoover vetoed the Philippine Independence Act of 1931 because of Moro protests.

But the Filipino leaders merely doubled / tripled their efforts. Regular missions to the US were sent to convince American leadership about the folly of trusting the Moros. The Filipinos only had to remind the Americans of the deaths and destruction the Moros had done to American army personnel in Mindanao and the report of US officials that “a good Moro is a dead Moro.”

The eloquence, charm and strong personalities of Quezon, Osmena, Roxas and their colleagues were all put to good use. No Moro leader went to the US to counter Filipino charges. And so the Tydings- McDuffie Law was passed in 1936 promising independence to the Philippine Islands, including Mindanao and Sulu.

In 1946, the US handed over the Moro nations to the Indios-Filipinos and formed a new nation-state to be called the Republic of the Philippines.

But the Moros, defending themselves from genocide, rose again in the early 1970s. The Moro fight has been officially recognized by the Organization of Islamic Conference with the MNLF having an observer status.

The various international agreements (Tripoli, Jakarta) signed by the Philippine government and the MNLF were honored more in the breach than in implementation.

In sum, from the 15th century, the Moros were masters of their destinies while the Indios were a subjugated people under the Spanish. It was only in the 20th century when the Moros finally accepted foreign (American) domination in exchange for the right to practice their religion and way of life. Later, they were co-opted by the Indios into a new nation called the “Filipino” nation and a new state called Philippine Republic. Some thirty years after their experiment with being Filipinos, the Moros rose again and asserted a new ethnic identity — the Moro nation (Bangsa Moro) . But the Moros were no match for Marcos’s diplomatic and political genius.

With the new century / millennium starting with an American War Against Terrorism, which many Muslims the world over see as the War against Islam, the prospect of a renewed Moro War is quite bright. (The lapsus linguaeof US President Bush when he declared a “Crusade” against his enemies did not escape the Muslims’ attention).

Once again, the Indios-Filipinos have called on “Mother America” to help them fight the Moro “savages” now called “terrorists.

One hundred years ago, America unilaterally abrogated the Bates Treaty with the Sultanate of Sulu and illegally annexed the whole of Moroland. In 1946, America, without any basis, handed the Moro nations to the Indios-Filipinos.

Today, America is here again, upon the call of the Indios-Filipinos to fight the “terrorists” — the new adjective for Moros.

We call on America not to be blinded again by the sweet words and promises of the Indios — like a new military base. We call on America to not to add another injustice to the Moro people. We call on America to right the wrong it had done to the Moro people. Our fathers and forefathers had asked America for protection against the Indios-Filipinos. Instead, America fed them to the lions, as it were.

In 1910, in a conference with US Secretary of War Jacob Dickinson, Datu Mandi said, ” As I look around, I see more Moros than Filipinos. That is why it’s called the Moro Province. If the American government does not want the Moro Province anymore, it should give it back to us. It is a Moro Province, it belongs to us.”

Another Moro leader, Hadji Nuno said, “The Secretary of War must look the matter in the face. We have a different race, a different religion… If we should be given over to the Filipinos, how much more would they treat us badly, when they treated even the Spanish badly? The Spanish were their own mothers and their own fathers for generations.”

Today, as we look around the former Moro Province, we see there are now more Indios. That is why they want to limit ARMM to just a few provinces. Have they treated the Moros badly? They only killed and tortured tens of thousands of Moros during the Marcos regime, waged an all-out war against MILF during Estrada’s presidency and now have called on the US Marines for help. This is not to mention the marginalization and extreme poverty of the Moro people.

We ask America to uphold the right of the Moro people to freedom and to self- determination. Like our forefathers, we would rather be free under American neocolonial rule rather than marginalized under Indio-Filipino rule. Ever since World War II, the Moros, unlike the Indios, never killed any Amercian, especially American soldiers. Unlike the Indios, there are no illegal Moros in the US. There are no Moro communists. The Moros have not done any harm to the U.S.

The Americans have no reason to fight the Moros. But it has the moral obligation to undo what it did before. The US gave the Moros and Moroland to the Indios-Filipinos. Perhaps it is about time to give the Moros back their freedom. It is never too late to undo a harm done — even if it is one hundred years late.

There is ample justification, I believe, for the statement that emotionalism has beclouded and confused the North Borneo question. There are Filipinos who summarily adopt the my-country-right-or-wrong attitude; in specific terms, they tell us, “Let us have North Borneo by all means,” little realizing that by such a hasty, imprudent posture they render no little disservice to the very cause they propose to champion.

At the other end of the line are the faint-hearted souls who cherish a host of vague, nameless fears, and who have not stopped imagining the catastrophic, nuclear wars into which the Philippines would be drawn should it so much as attempt to press the claim to North Borneo, regardless of the merit or validity of such a claim. Responsible quarters confess to no little measure of amusement over the unrestrained enthusiasm, on the one hand, of home-grown nationalists in supporting claims — without adequate study of their validity — of sister countries in Asia over territories held by Western powers, and their unconcealed dread, on the other hand, in espousing a claim — without the slightest inquiry into its possible merit — over a portion of the globe’s surface which may belong as a matter of law and equity to Filipinos.

A good number of friends have asked me to deliver what they call an “impassioned speech” on the question, but I had felt that the time was not ripe and that the whole issue should be studied in an atmosphere of dispassion and restraint. I felt and still feel that the restoration of prudence and sobriety in the conduct of our foreign policy is a matter of cardinal importance. In the language of one world statesman, foreign policy is not only what we do, but how we do it.

If the Philippine claim to North Borneo is valid, we should — despite our standing as a young, physically weak nation — institute and press the claim in accordance with the accepted peaceful modes of settlement prescribed by international law and procedure. If, despite the assumed knowledge of the validity and justice of the Philippine claim, we fold our arms in mortal fear, we should lose not merely the respect of all law-abiding nations (the United Kingdom and the Asian countries inparticular), but also a considerable measure of self-respect — which, to my mind, is more important — and, by our own inaction and timidity,lose our faith in the ultimate validity of that which is right and just. If,on the other hand, we come to the conclusion that the Philippine claim is without basis, then we should say so and let the British Government know our stand. Such candor and probity will undoubtedly inspire the respect of the entire free world.

It is partly because of the well known regard of the British Government for the rule of law, and partly because of our deep-seated respect for the British institutions of law and order, that I have requested the Department of Foreign Affairs to make a careful, thoroughgoing study of the question and, if morally convinced of the merit of the Philippine claim, to institute and prosecute this claim through all peaceful processes, including diplomatic negotiations, good offices, commission of inquiry, arbitration, or resort to the International Court of Justice. There need be no fear of breach of amicable relations between the United Kingdom and the Philippines. Both are members in good standing of the United Nations; both are committed to the rule of law and to the necessity of maintaining a society of free men. On the other hand, the peaceful solution of the North Borneo question may well be a distinct Anglo-Philippine contribution, so sorely needed at a time such as this, where instead of a precarious equilibrium of terror as a temporary stabilizing factor in international relations, there should emerge more instances of healthy respect for law and for more voluntary arrangements among nations so that the moral force of right may be made to prevail over the right of might.

Friendly countries will therefore understand why the Filipinos view with deep concern any move on the part of the United Kingdom, in advance of the institution of such a claim, to render academic the North Borneo question through extra-legal means. For instance, a dispatch from Kuala Lumpur. Malaya, published in the New York Times issue of February 7, 1962. states and I quote:

“KUALA LUMPUR, Malaya, Feb. 6. — A political merger under a strong central government has been recommended by the Malaysian Solidarity Committee.”The five-state merger would create a federation of Malaya, Singapore Island — which is linked to Malaya by a three-quarter mile causeway — and the Northern Borneo territories of Sarawak, Brunei and British North Borneo.“A British and Malayan commission, headed by Lord Cobbold, former Governor of the Bank of England, is due to arrive in Borneo soon to inquire into public opinion in Sarawak and British North Borneo concerning the merger. Both are crown colonies. Brunei is a British protectorate, and its Government will deal directly with the Federation of Malaya and with London.”

One may well inquire: — why this plan of a merger at a time such as this? At any rate, and without considering such a development, let us consider the facts.

I . There is no controversy regarding one historical fact: namely, that in 1850, the Sultan of Brunei, in gratitude for the aid he received during war from the Sultan of Sulu, ceded North Borneo to the latter.

II. In January, 1878, the Sultan of Sulu entered into an agreement with two representatives of a private British company, namely, Gustavus Baron de Overbeck and Alfred Dent. It is at this point where controversy arises.

There are, to be sure, several versions of the agreement and quite a number of translations of said agreement. One group of heirs of the Sultan of Sulu submitted a certified translation of a Spanish text of the agreement, dated January 4, 1878, which in turn is a translation of the original in Arabic. Under this document, the Sultan of Sulu merely concluded a contract of lease with Baron de Overbeck and Alfred Dent, and granted to Mr. Overbeck the title of “Datto Padajara Rajah de Sandakan” as long as he might live, with the right to levy taxes on the said land, exploit its ores, forest products and animals, administer justice and collect dues and taxes from the traders of said towns. There are also in the files of the Department of Foreign Affairs several English translations (Conklin translation; Saleeby translation on the “History of Sulu” pp. 225-233; Decision of High Court of Borneo citingtranslation in “Treaties and Engagements affecting the Malay States,” by Maxwell and Gibson), which invariably use the terms “lease,’ “cede” and “grant.”

On the other hand, a document purporting to be the British text of the agreement, kept in the files of the British North Borneo Company in London, would seem to show that the Sultan of Sulu ceded and granted to Overbeck and Dent on January 22, 1878,

“all the rights and powers belonging to me over all the territories and lands being tributary to us on the mainland on the Island of Borneo”in consideration of a yearly compensation of 5,000 dollars, together “with all other powers and rights usually exercised by and belonging to Sovereign Rulers, and which we hereby delegate to him of our own free and sovereign will.”

III. On November 1, 1881, the British Government granted a Charter to the British North Borneo Company which, after a recital of the terms of agreement between the Sultan of Sulu and the two representatives of the Company, empowered the Company to acquire full benefit of the said “grant” and “benefits.” Accordingly, Baron de Overbeck and Alfred Dent turned over their rights to the British North Borneo Company, which continued paying the stipulated 5,000 Malayan dollars.

IV. In 1915, Governor Frank Carpenter, head of the Mindanao and Sulu division of the Philippine Government, defined the stand of the United States vis-a-vis the Sultan’s temporal and ecclesiastical jurisdiction over the territories of the Sultanate beyond American jurisdiction, particularly those in North Borneo. He stated and I quote:

“It is necessary, however, that there be clearly of official record the fact that the termination of the temporal sovereignty of the Sultanate of Sulu within the American territory is understood to be wholly without prejudice or effect as to the temporal sovereignty and ecclesiastical authority of the Sultanate beyond the territorial jurisdiction of the U.S. Government, especially with reference to that portion of the Island of Borneo which as a dependency of the Sultanate of Sulu is understood to be held under lease by the chartered company (known) as the British North Borneo Company.”

V. In 1939. a group of heirs of the Sultan filed suit in the court of North Borneo against the Government of North Borneo and the British North Borneo Company for the recovery of the stipulated annual payments. Both defendants admitted their obligation to pay, the only issue being — in view of reported dispute among the heirs — to whom payment was to be made. The High Court of the State of North Borneo, through Chief Justice Macaskie, rendered judgment in favor of the heirs on December 18, 1939.

Crucial Question:

VI. On July 10, 1946, six days after the Philippines became independent, the British Government, by virtue of an alleged agreement between the Secretary of State for the colonies and the British North Borneo Company dated June 6, 1946 — whereby the Company “have transferred and ceded all the said rights, powers and interests to the Crown with effect from the 15th day of July, 1946, to the intent that the Crown should, as from that day, have full sovereign rights over, and title to, the territory of the State of North Borneo, and that the said territory, should thereupon become part of His Majesty’s dominions” — announced, by what is now known as the “North Borneo Cession Order,” that from the 15th day of July, 1946, “the State of North Borneo shall be annexed to and shall form part of His Majesty’s dominions and shall be called, together with the Settlement of Labuan and its dependencies, the Colony of North Borneo.”

VII. On February 26, 1947, former Governor General Francis Burton Harrison (as Special Adviser on Foreign Affairs to the Philippine Government), in a special report to the President of the Philippines, considered this an act of political aggression, “which should be promptly repudiated by the Government,” since it was done by the British Government “unilaterally and without special notice to the Sultanate of Sulu nor consideration of their legal rights.” He added:

“The proposal to lay the case before the United Nations should bring the whole matter before the bar of public opinion.

“Never in history has there been given any people such an opportunity to secure justice by an appeal to the enlightened conscience of mankind.”

VIII. In 1957, the heirs of the Sultan of Sulu issued a proclamation declaring the termination of the lease contract over the territory in question effective January 22, 1958. This declaration was served on the British Government. Since then, the heirs have made claims upon the British Government for the return of the territory, but their claims have been disregarded.

The crucial question, then, is one of ownership: Is ownership vested in the United Kingdom? Does the Philippines have any right to claim North Borneo?

In discussing this, I have taken careful note of the statements of the highest British officials and considered the views of English authorities on international law. In this way, we avoid pointless controversy since the British Government cannot possibly dispute, under the principle of estoppel, its own official stand. There may be a lot of wrangling over what is the authentic version of the agreement of 1878, but there can be no debate on the official British stand on that agreement.

At the time the agreement was entered into in 1878, the British North Borneo Company had no legal personality whatever. It was incorporated by Royal Charter only on November 1, 1881. It is important to note this, since admittedly in 1878, North Borneo was not under the territorial supremacy of any member of the Family of Nations.

Overbeck and Dent, therefore, acquired rights over North Borneo merely as private individuals and no more. Their purported acquisition of territory and “sovereignty” was therefore beyond the pale of International Law. Did the incorporation by Royal Charter of the British North Borneo Company in 1881 create a trading company with sovereign rights — even from the English viewpoint — over North Borneo? This was the very bone of contention between the Spanish and Dutch Governments, on the one hand, and the British Government, on the other, soon after the Royal Charter was granted the British North Borneo Co. It is a matter of record that the British Government had declared that it did not intend to acquire sovereign rights in North Borneo. But the Spanish and Dutch Governments protested that such a declaration was inconsistent with the grant of a Royal Charter to the British North Borneo Company, “invested with sovereign rights by the Native Chiefs of North Borneo, and subject, as regards the exercise of these rights, to the Supreme authority of Her Britannic Majesty’s Government.” The British Foreign Minister, Lord Earl Granville, in a correspondence to the British Minister at Madrid, Mr. Morier (No. 197), dated January 7, 1882, recapitulated “the circumstances under which Her Majesty’s Government acceded to the application of the Company for Incorporation by Royal Charter,” drew attention “to the special character of that Charter,” and explained “its legal effect.” Lord Granville said the British North Borneo Company was in fact established under three Charters: (1) the Charter and territorial concession from the Sultan of Sulu; (2) the Charter and territorial concession from the Sultan of Brunei; and (3) the British Charter of incorporation. Note the following significant passages from Lord Granville’s correspondence:

“The first two Charters, from the Sultans of Sulu and Brunei, are those under which the Company derive their title to the possession of the territories in question, and their authority to administer the government of those territories by delegation from the Sultans.

“The third Charter is the British Charter under which the Company have obtained incorporation and a recognition of her Majesty’s Government of their title to the territories granted. In return for incorporation by Royal Charter, and for the recognition of the Concessions, the Company have surrendered to Her Majesty’s Government various powers of control over their proceedings which, though of a negative character only, are sufficient for the prevention by Her Majesty’s Government of any abuse in the exercise of the authority conferred by the Sultans. It is important to bear in mind that no such control would have been reserved to the Crown had theCompany taker, incorporation in the usual manner by registration under the Companies Acts, and elected to follow their own course independently of Government support.

“The British Charter therefore differs essentially from the previous Charters granted to the East India Company, the New Zealand Company, and other Associations of that character, in the fact that the Crown in the present case assumes no dominion or sovereignty over the territories occupied by the Company, nor does it purport to grant to the Company any powers of Government thereover; it merely confers upon the persons associated the status and incidents of a body corporate, and recognizes the grants of territory and the powers of government made and delegated by the Sultans in whom the sovereignty remains vested. It differs also from previous Charters, in that it prohibits instead of granting a general monopoly of trade.”

In thus differentiating the status of the British North Borneo Company, Lord Granville stated that “after very careful consideration of all the circumstances of the case Her Majesty’s Government decided that the Charter should be granted, and you will perceive from an examination of its provisions that its effect is to restrict and curtail the powers of the Company and not to create or enlarge them.”

In similarly repudiating the Dutch contention, Lord Granville stated that the territories “will be administered by the Company under the sovereignly of the Sultans of Brunei and Sulu, to whom they have agreed to pay a yearly tribute,” and that “the British Government assumes no sovereign rights whatever in Borneo.”

Much the same disclaimer was sounded by the famous Prime Minister, William Ewart Gladstone. Speaking in the House of Commons, he acknowledged that the “remarkable powers” obtained by the British North Borneo Company involved the “essence of sovereignty” but they were “covered by the Suzereignty of the Native Chief.” He declared that no greater obligation rested upon the Government to protect the Company than “to protect any other subject who might be in pursuit of objects not unlawful.”

These authoritative statements show, in brief:

1 . that Overbeck and Dent were not authorized by the British Government to acquire and administer North Borneo; they merely acted in their private individual capacity.

2. that the British North Borneo Company was not invested by the British Government with the public power of acquisition and administration of North Borneo, unlike the different trading companies chartered at the time.

3. that the British Government assumed no rights of sovereignty whatever in North Borneo; and

4. that the British Government explicitly acknowledged the sovereignty and title of the Sultan of Sulu over North Borneo.

Significance:

The classic British text on International Law, a Treatise on International Law by Oppenheim (7th edition, edited by Lauterpacht, 1948), gives us the significance in International Law of the above facts. Oppenheim states that where an individual or a corporation acquires land in countries which are not under the territorial supremacy of a member of the Family of Nations, such acquisition of territory and sovereignty thereon “takes place outside the dominion of the Law of Nations, and the rules of this law, therefore, cannot be applied,” unless the “corporation in question is invested by its State with public power of acquisition and administration.” (Volume I, sec. 209 (2), p. 496). He adds:

“If the individual or corporation which has made the acquisition requires protection by the Law of Nations, he or it must either declare a new State to be in existence and ask for its recognition by the Powers, as in the case of the former Congo Free State, or must ask a member of the Family of Nations to acknowledge the acquisition as having been made on its behalf.” (Id., at 496, 497.)

It is obvious that the British North Borneo Company, as the successor in interest of Overbeck and Dent, has not declared a new State to be in existence in North Borneo; and it is equally obvious that the BritishGovernment has refused to acknowledge, at least until 1946, the acquisition by Overbeck and Dent, and latterly, the British North Borneo Company, as having been made in its behalf.

What, then, is the significance in International Law, of the British Cession Order of July 15, 1946, which states in part:

“And whereas by an Agreement dated the twenty-sixth day of June, 1946, and made between His Majesty’s Secretary of State for the Colonies on behalf of His Majesty (therein and hereinafter referred to as ‘the Crown’) of the one part and the Company of the other part the Company (amongst other things) have transferred and ceded all the said rights, powers, and interests to the Crown with effect from the fifteenth day of July, 1946, to the intent that the Crown should, as from that day, have full sovereign rights over, and title to, the territory of the State of North Borneo, and that the said territory should thereupon become part of His Majesty’s dominions;“Now, therefore, His Majesty is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows:“1. This Order may be cited as the North Borneo Cession Order in Council, 1946, and shall come into operation on the fifteenth of July, 1946;“2. As from the fifteenth day of July, 1946, the State of North Borneo shall be annexed to and shall form part of His Majesty’s dominion and shall be called, together with the Settlement of Labuan and its dependencies, the Colony of North Borneo;“3. All persons who on the fifteenth day of July, 1946, are citizens of the State of North Borneo by virtue of the provisions of the North Borneo Naturalization Ordinance, 1931, shall, on that day, become British subjects;“4. His Majesty hereby reserves to Himself, His Heirs and Successors, power to revoke, alter and to amend this Order.”

Note that the Cession Order is convenient in its vagueness as to the exact nature and scope of the rights and interests of the British North Borneo Company. How could it be otherwise in the light of the categorical disclaimers made by Lord Granville and Prime Minister William Gladstone?

Could the British North Borneo Company purport to transfer sovereignty over North Borneo to the Crown? Certainly not. The British Government had made it crystal clear that the Company did not have that power, and that sovereignty remained with the Sultan of Sulu. All that was transferred, in the very carefully worded Cession Order, was the mass of “interests, powers and rights” previously acquired by the British North Borneo Company.

In other words, the assertion of sovereignty over North Borneo by the Crown, effective July, 1946, under its own Cession Order, repudiated and set aside all the solemn Government declarations made by its highest officials; more than that, it threw overboard the sovereignty and title of the Sultan of Sulu which it had acknowledged in the past and completely disregarded the proprietary rights of the heirs of the Sultan over North Borneo. It was, to borrow the language of former Governor General Francis Burton Harrison, “an act of political aggression which should be promptly repudiated by the Government.”

I shall not, at this juncture, belabor the point so ably expounded by the Philippines Free Press writer, Mr. Napoleon Rama, namely, that the agreement of 1878 was just a contract of lease, not a contract of cession. The statements of Lord Granville and Prime Minister Gladstone three years after the contract was concluded, the contemporaneous official communications to and from the Minister of State in Madrid, the yearly tribute of 5,000 dollars to the Sultan of Sulu, and the terms of the “Cession Order of 1946” amply show that no cession was contemplated or ever perfected. A lease arrangement which, according to language scholars, is the English translation of the Malayan word, “padjak,” would seem to be the only other explanation. At any rate in International Law, individuals do not and cannot enter into treaties of cession (whereby sovereignty is acquired) with native tribal chiefs: these are outside the realm of the Law of Nations.

Modes:

It is probable that the British Government, to justify its new stand, will fall back on one of two modes of territorial acquisition in International Law; namely, occupation and prescription.

Occupation is an original mode of territorial acquisition, and is effected through possession and administration of the territory by or in behalf of the acquiring State. The prime object of settlement by occupation is the incorporation of unappropriated territory into the national domain of the acquiring State. Only such territory as is not within the dominion of any State may be the object of occupation. In other words, the territory must be res nullius or terra nullius. The term res nullius, as has been interpreted, does not require that the territory be uninhabited, but that it be not already occupied by a people or State whose political organization is such as to cause its prior rights of occupancy to be recognized.

We must concede that in the past European powers did not recognize the title of settled peoples whose civilization was allegedly below the European standard. The emergence of non-European powers, and the growing importance of new nations in the Afro-Asian bloc, have eroded away this concept. At any rate, insofar as the British Government is concerned, it is precluded from claiming that the Sultan of Sulu had a title or a political organization below the European standard. All we need to do is to refer back to the text, of Lord Granville’s correspondence. Note the last paragraph in his letter to Morier, the British minister at Madrid, portions of which were quoted earlier:

“As regards the general features of the undertaking, it is to be observed that the territories granted to the Company have been for generations under the government of the Sultans of Sulu and Brunei, with whom Great Britain has had treaties of Peace and Commerce. . .”

It would be passing strange now for the British Government to contend that the Sultan of Sulu did not possess either a perfect title or a political organization below European standards, at least insofar as North Borneo is concerned. In the Law of Nations, states the British authority, Oppenheim, the conclusion of a bilateral treaty, such as a treaty of commerce and navigation, implies recognition (Op. cit., Section 75 (cl) p. 143).

THE NORTH BORNEO QUESTION

But this is not all. The important thing is that the Cession Order of 1946, annexing as it does the Territory of North Borneo and incorporating it as part of His Majesty’s dominions, ran counter to and violated:

(1 ) the official declarations of the British Government as to the legal nature and effect of the Agreement of 1878;

(2) the Treaty of Peace and Commerce entered into between Great Britain and the Sultan of Sulu;

(3) the title and rights of dominion which the Sultan of Sulu, on the strength of British admissions, had over North Borneo.

Oppenheim is authority for the proposition that while it is true that States may acquire new territorial or other rights by unilateral acts, such an annexation, without recognition on the part of third States being required for their validity, yet the position is different when “the act alleged to be creative of a new right is in violation of … conventional International Law. In such cases the act in question is tainted with invalidity and incapable of producing legal rights beneficial to the wrongdoer in the form of a new title or otherwise.” (Op. cit., Sec. 75 (b), at p. 136).

Prescription. — Prescription has been defined as the acquisition of territory by an adverse holding continued through a long term of years. The generally accepted concept of prescription in International Law apparently requires the existence of two essential facts, namely: continuous and undisturbed possession, and lapse of a period of time. Hugo Grotius, the father of International Law, laid down the rule that the adverse holding should go “beyond the memory of man. Vattel maintained that possession may ripen into title only after the lapse of a “considerable number of years ” Insofar as the present question is concerned, there may not be sufficient warrant for saying that the British possession was adverse, considering the yearly tributes they have paid to the Sultan of Sulu and his heirs. Their possession from 1946 up to this date, in the light of the continuous protests of the heirs and the termination of the lease, has not been uninterrupted and cannot possibly ripen into a title.

I have heard it said that the Philippine claim may not prosper because of Article 1 of the Philippine Constitution defining the National Territory. Article I provides:

“Section 1. The Philippines comprise all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits of which are set forth in Article III of said Treaty, together with all the islands embraced in the treaty concluded at Washington, between the United States and Spain on the seventh day of November, nineteen hundred, and in the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction.”

I feel that those who argue along this line confuse the concept of national domain with proprietary rights of Filipino citizens over a portion of the earth’s surface. The Philippine Government is now called upon to defend and vindicate those rights, and if, as I know, appropriate arrangements have been made by the heirs of the Sultan of Sulu, with the Philippine Government, there should be no apprehension whatever that this claim will provide undue incentives for mere speculators. In other words, Article I has no applicability whatever to this kind of a claim. In the remote possibility that Article I is made to apply, there is ample room for protection in the saving clause found in said article, in the light of authoritative pronouncements of British officials. We need not even consider the thesis that in 1935, when the Philippine Constitution was adopted by the Filipino people, the Philippines was not an independent State but a mere dependency, and that therefore the restrictive provisions of Article I could not possibly tie the hands of the Republic as soon as independence became a reality.

There is something pathetic in the fact that it took an American official, the former Governor General Francis Burton Harrison, to assess the full import of the Cession Order of 1946. In a special report he submitted on September 26, 1946 in his capacity as Special Adviser on Foreign Affairs to the Philippine Government, he called the Cession Order by its proper name — “an act of political aggression.”

It would seem equally pathetic that some home-grown nationalists have counseled the Government to pursue a policy of fear and inaction.

In 1946, the voice of Harrison sounded like a cry in the wilderness. In 1962, that voice has gained volume and is no longer alone. Just a few days ago, the House of Representatives unanimously passed a resolution requesting the President to take all the necessary steps consistent with international law and procedure for the recovery of North Borneo.

Before the bar of world opinion, the Philippines can invoke the ringing declarations of responsible leaders all over the world — including those of the United Kingdom — who have vowed to end the practice of colonialism in all its manifestations. In recent years, the United Nations has been seriously concerned with the problem of colonialism and has now asked for its speedy liquidation. The North Borneo question should furnish an excellent instance for the British Government to translate a preachment into a cold reality. When in 1946, the British Government saw fit to make North Borneo a colony, in disregard of its previous disclaimers, her policy-makers must have foreseen the inevitable consequences of such an inopportune move, considering the temper of subject peoples all over the world. For the Filipinos, the North Borneo situation is not merely a problem of liquidation of colonialism; it is a question of the return to them of what, in law and equity, properly belongs to them, and which they can rightly call their own.

As I said in the beginning, there should be no apprehension of any rupture in the friendly relations between the United Kingdom and the Philippines. Friends can and should at times disagree. The important thing is that they should not become disagreeable. And like two good friends, the Philippines and the United Kingdom can differ on this point without being difficult. It is merely in keeping with the highest traditions of civility and a mutual respect for the rule of law that the Philippine Government should now, in the light of all relevant evidence, institute the claim and initiate the necessary steps toward the peaceful settlement of the North Borneo question.